Answers To Questions

In her opening statement before the Senate Judiciary Committee last week, Sonia Sotomayor said that she wanted to clear up some questions about her views. “In the past month, many senators have asked me about my judicial philosophy,” she said. “Simple: fidelity to the law. The task of a judge is not to make law—it is to apply the law.” Coming from a jurist of such distinction, this was a disappointing answer. Like much of her testimony, it suggested that the job of a Supreme Court Justice is merely to identify the correct precedents, apply them rigorously, and thus render appropriate decisions.

In fact, Justices have a great deal of discretion—in which cases they take, in the results they reach, in the opinions they write. When it comes to interpreting the Constitution—in deciding, say, whether a university admissions office may consider an applicant’s race—there is, frankly, no such thing as “law.” In such instances, Justices make choices, based largely, though not exclusively, on their political views of the issues involved. In reaching decisions this way, the Justices are not doing anything wrong; there is no other way to interpret the majestic vagueness of the Constitution. But the fact that Judge Sotomayor managed to avoid discussing any of this throughout four days of testimony is indicative of the way the confirmation process, as it is now designed, misleads the public about what it is that Justices do.

The process evolved this way as a response to a political, not a legal, problem. In 1987, Robert Bork engaged the Judiciary Committee in a substantive discussion of his judicial philosophy, and the Senate, quite properly, voted him down, because of his narrow conception of the protections enshrined in the Bill of Rights. From this example, Supreme Court nominees took the lesson that the less said the better, and beginning with Anthony Kennedy, who succeeded Bork, nominees have taken to suggesting that simple fidelity to the law was the primary work of a Justice. The stonewalling has been bipartisan, from Ruth Bader Ginsburg, who testified that “a judge sworn to decide impartially can offer no forecasts, no hints,” to Samuel Alito, who ducked questions about abortion rights by saying, “It is an issue that is involved in litigation now at all levels.” Accordingly, Sotomayor asserted that she will follow Supreme Court precedent and keep an “open mind.” (Though, when it comes to interpreting the Constitution, one can scarcely imagine a worse qualification than an open mind. The issues are difficult and profound and require a lifetime of study to master, and one would hope that Justices arrive with heads full of firm ideas about the document they are charged with understanding.)

Still, watching a Supreme Court confirmation hearing is not a completely unedifying experience. The tableau of the first Hispanic nominee to the Court—a veteran judge of impeccable professional and academic credentials—addressing the Judiciary Committee was a satisfying one for those who care about a diverse and inclusive society. The best barometer of the current moment in law and politics, however, came not from the Judge’s answers but from the senators’ questions—the ones they chose not to ask as well as the ones they did.

In 2004, Karl Rove figured that a good way to secure the reëlection of George W. Bush was to place the polarizing issue of same-sex marriage on the ballots in certain swing states. Five years later, though, the prospect of gay marriage looks a lot less scary, at least to people outside “the base.” (California’s rejection of same-sex marriage by only a narrow margin of voters last year seemed to mark an unexpected turning point on the issue.) It is true that Sotomayor’s judicial record had few veins to mine in this regard, but the Republicans’ reluctance to raise the issue (except briefly, late in the hearing) suggests that it’s starting to become an embarrassment. There was a similar lack of passion in the few questions asked about abortion, which has been the perennial battleground of the confirmation wars.

The questions that were asked, especially those asked many times, sent a message, too. Much of the hearing was spent parsing Sotomayor’s comment in a 2001 speech in California, which she repeated in substance elsewhere: “I would hope that a wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Likewise, she spent a lot of time defending her ruling in the New Haven firefighter case, in which she approved the city’s nullification of a promotion examination when it turned out that no African-Americans had made the grade. Seventeen white firefighters and one Hispanic firefighter who qualified for promotion had challenged the city’s decision in court, and the Supreme Court last month overturned Sotomayor’s decision by a vote of five to four.

There was something distasteful about Sotomayor’s being lectured on civil rights by the likes of Senator Jeff Sessions, of Alabama, whose own retrograde views on race back in 1986 led to his being rejected for a federal judgeship by the very committee on which he now serves. (One of the more cringe-worthy moments of the hearing was Sessions’s expression of incredulity that Sotomayor might disagree with another judge on her court even though he was also Puerto Rican.) But it’s worth noting that, on both issues, Sotomayor offered only a tepid defense. She disowned the “wise Latina” remark and settled on a purely legalistic justification of her ruling in the New Haven case: that the action was permissible because the city feared a lawsuit charging that the exam had a “disparate impact” on certain minorities.

In a curious way, the election of Barack Obama has hurt the traditional civil-rights agenda, which, since the nineteen-sixties, has included special measures to assist minorities in education and employment. Fairly or not, the politician who needed no help to vanquish Hillary Clinton and John McCain now stands for the idea that all playing fields in the United States are level. In any event, as the Sotomayor hearing illustrated, it’s getting harder to argue otherwise. This is, in many ways, good news, because it means that some barriers to opportunity have fallen. (Though others have not; for example, only fifteen per cent of the supervisors in the New Haven Fire Department are African-American, in a city that is nearly forty per cent black.) If, over the course of a long and well-deserved career on the Supreme Court, Sonia Sotomayor figures out how to overcome those which remain, she will prove to be a very wise Latina indeed. ♦